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The rape survivor facing 20 years in jail lays bare El Salvador’s war on women

Women accused of abortions are charged with homicide while femicides, rapes, and other gender violence often goes unpunished in the Central American country.

By Heather Gies

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Women in El Salvador protest against the country's abortion laws

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When police arrested Imelda Cortez in the hospital for having an abortion, she didn’t even realise she had given birth to her rapist’s baby in the toilet.

Now facing 20 years in jail for allegedly trying to murder her newborn baby girl, the 20-year-old’s case illuminates the injustice of El Salvador’s draconian abortion ban that often criminalises disadvantaged women.

“Imelda’s case is significant because it shows the systematic violation of women’s rights in El Salvador,” said Sara Garcia, an activist with the Citizen Group for the Decriminalization of Abortion. “The Salvadoran state is persecuting women and not truly guaranteeing our human, sexual, and reproductive rights.”

Cortez, who suffered repeated rape by her stepfather between the ages of 12 and 18, has been behind bars awaiting trial on charges of attempted aggravated homicide of her baby for more than a year and a half.

In April 2017, she went to the toilet after she began to feel pain in her abdomen. When she saw she was bleeding heavily, she called out for her mother, who rushed her to the hospital. The doctor suspected Cortez had attempted to terminate her pregnancy and called police, who arrested her.

Her hearing, scheduled for 12 November, was postponed until 17 December after the prosecutor called in sick with a sore throat at the last minute. She will remain in jail until then. Her 19-month-old daughter is in the care of Cortez’ mother.

“This violates Imelda’s human rights and procedural rights,” said Ana Martinez, one of Cortez’ lawyers, arguing that there has been a lack of due process in the case.

Marcela Martino, subdirector of the Center for Justice and International Law’s Central America and Mexico program, criticised the prosecution’s use of arguments “with no scientific or factual evidence,” such as claiming that the fact Cortez did not tell anyone she was pregnant indicated she intended to harm or kill her baby. “The prosecutor’s entire theory is based on hypotheses that do nothing more than reproduce gender stereotypes,” she said.

According to a psychological evaluation, Cortez did not believe she was pregnant because her menstrual cycle had not stopped and her stepfather, 71-year-old Pablo Hernandez, had told her he was too old to impregnate her. She also lived in fear of Hernandez, who threatened to kill her or her mother if she spoke out about the abuse.

Authorities initially disregarded Cortez’ claims she had been raped, but a DNA test later confirmed Hernandez’ paternity. Hernandez has since been detained facing charges of aggravated rape of a minor, according to Martinez. The slow response to the rape allegations stands in sharp contrast to the “rapidity and intensity” of the case against Cortez, Martino said.

Cortez, who grew up in poverty in the department of Usulután 100km from the capital city, is one of 25 women currently jailed in El Salvador after suffering miscarriages, out-of-hospital births, or other gynaecological emergencies that were deemed criminal under the country’s strict abortion ban. Rights groups report that the law disproportionately impacts poor women with a lack of access to formal schooling, sexual education, and health services.

“Imelda’s is one of the cases that represents the intersectionality of violence. She is a young woman, in a situation of poverty, who has faced sexual violence,” said Garcia. “And the state has failed and continues to fail her by punishing and criminalising her.”

El Salvador outlawed abortion in all circumstances in 1997. The crime in punishable by up to eight years in prison, but alleged abortions are often treated as homicides, which lands women in jail for up to four decades. A 1999 Constitutional amendment protects life from conception.

“The entire judicial and health system changed to be against women,” Martinez said of the reforms two decades ago. “It is a restrictive law that affects women’s sexual and reproductive rights, but also criminalises them.”

A bill aimed at loosening the ban was introduced two years ago, but has stagnated in the face of conservative resistance in the Legislative Assembly. The proposed law would allow abortion in cases of rape, when the woman’s life is in danger, or when the fetus will not survive.

“Women should have access to practice abortions that are legal and safe — not clandestine,” Martinez said.

High rates of sexual abuse and teen and child pregnancy also underline deep gender inequality in the small Central American country.

In 2016, 1,171 girls between the ages of 10 and 14 became pregnant — which is considered rape under Salvadoran law — accounting for about 5 per cent of all pregnancies that year in the country of 6.3 million (pdf). Such cases of rape and sexual abuse of girls are often “normalised and kept in impunity,” according to a report by the Salvadoran Women’s Development Institute.

El Salvador is also home to the highest femicide rate per capita in Latin America and the Caribbean. Four in 10 Salvadoran women experience sexual violence at some point in their lives, and nearly seven in 10 women experience some form of gender violence, including emotional or psychological violence, according to official statistics.

Martino believes that the disconnect between persecution of women like Cortez, herself a victim, and the generalised impunity for crimes of femicide, rape of young girls, and other gender violence, is telling. “This is not just a mistake, but rather it is part of a state policy that is selective in who it prosecutes, and it is prosecuting women who generally are poor and in vulnerable situations,” she said.

“Imelda needs her rights to be protected, and what she has received is absolutely the opposite,” Martino added. “Not only did she not receive remedy for the violence she suffered, but the state has violated her rights even more.”

Heather Gies is a freelance journalist. Follow her on Twitter @HeatherGies.